FMLA Intermittent Leave: 8 Questions HR Asks Most

Intermittent leave under the Family and Medical Leave Act (FMLA) lets eligible employees take job-protected leave a few hours or days at a time for a single qualifying reason. That flexibility helps employees, but it makes tracking and paperwork tricky for HR. One misstep can lead to an FMLA interference claim.

These eight answers cover intermittent leave eligibility, scheduling, leave calculations – and when employers can push back on abuse.

1: What qualifies for FMLA intermittent leave?

FMLA-eligible employees are entitled to take leave on an intermittent or reduced schedule basis under the following circumstances: 

• For the employee’s own serious health condition
• To care for a spouse, parent, son or daughter with a serious health condition
• For a qualifying exigency, or
• To care for a covered service member with a serious injury or illness.

Leave for any of the three health-related reasons must be medically necessary, and employers can require certification from the employee’s health care provider.

2: Do we have to let new parents take intermittent leave for the birth or placement of a child?

As with many things in HR, it depends on the specific circumstances. Here, it depends on whether mother and child are healthy or have a serious health condition.

If both mother and child are healthy, the FMLA leaves it to employers to determine whether employees can use intermittent FMLA for bonding and care of a new child in the family. Some examples might include allowing new parents to work part-time on a reduced schedule or allowing parents to take blocks of leave – if the employer agrees to the arrangement. 

But if the child has a serious health condition or if the mother has a serious health condition related to childbirth, then “the employer’s agreement is not required,” according to FMLA regs. In such cases, the leave falls under the serious health condition rules, so it must be medically necessary.

3: What’s the difference between intermittent leave and reduced schedule leave under the FMLA?

Intermittent leave is the term most commonly used for both types of leave. However, Section 825.202 of the FMLA regulations defines the terms as follows: 

• Intermittent leave is “FMLA leave taken in separate blocks of time due to a single qualifying reason.” 
• A reduced leave schedule is “a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee’s schedule for a period of time, normally from full-time to part-time.”

4: Can we transfer an employee on intermittent leave?

Yes, when the leave is foreseeable because of planned medical treatment, employers can temporarily transfer the employee to an available position that better fits the leave schedule.

The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same. If the transfer is to a part-time job, the hourly rate stays the same, and benefits can’t be cut, though vacation time can be prorated.

And, of course, the employee must be reinstated to his original job – or its equivalent – when the intermittent leave period is over.

A few restrictions: Employers can’t use a transfer to discourage leave or create a hardship. Examples: Moving an employee from headquarters to a branch far from their normal work location, or to a less desirable shift.

5: Do employers have any rights about the scheduling of intermittent FMLA leave?

Yes, employers do have some rights when it comes to scheduling intermittent FMLA leave. 

For instance, if employees need to take intermittent leave or work on a reduced schedule for a planned medical treatment, the employee must make a reasonable effort to schedule the treatment to minimize disruptions to the company’s operations.

6: How do you calculate intermittent leave?

Time that an employee is not scheduled to report to work may not be counted as FMLA leave. Only the amount of leave actually taken may be counted against an employee’s leave entitlement. Employers must track intermittent leave in increments no larger than the smallest one they use for other types of leave, and never more than one hour.

When an employee takes leave for less than one full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek. An employer may convert fractions of a workweek to their hourly equivalent as long as the conversion fairly reflects the employee’s total hours.

For example, an eligible employee whose actual workweek is always 32 hours per week is entitled to 384 hours (12 workweeks x 32 hours per week) of FMLA leave in a 12-month period.

When an employee’s schedule varies from week to week so that you can’t determine how many hours the person would’ve worked during the week if they hadn’t taken leave, then you can use a weekly average of the hours scheduled over the 12 months before the leave began to calculate the employee’s FMLA leave entitlement.

Plus, if an employee would normally be required to work overtime, but is unable to do so because of an FMLA-qualifying reason, the hours that the employee would’ve been required to work may be counted against the employee’s FMLA entitlement. Voluntary overtime the employee skips for an FMLA reason can’t be counted.

For more help, check out How Do You Calculate FMLA Eligibility?

7: How can we prevent intermittent leave abuse?

Employers can help prevent intermittent leave abuse by requiring medical certification and periodic recertification. Employers can request recertification no more often than every 30 days, and only in connection with an absence. If the certification shows the condition will last longer than 30 days, employers generally must wait until that period ends. In all cases, they can request recertification every six months in connection with an absence.

Employers can request recertification sooner if the employee asks for a leave extension, if the duration or nature of the illness has changed significantly, or if the employer receives information that casts doubt on the employee’s stated reason for an absence or on the certification itself.

8: Can we fire an employee using intermittent leave? 

Obviously, workers can’t be fired for taking FMLA leave. But employers can lay off, discipline and terminate employees who violate company policies or perform poorly – even if they’re on FMLA leave.

However, it’s important to understand that if you fire or discipline an employee on FMLA, you’ll have the burden of showing the worker would’ve faced the same measures if they hadn’t taken (or requested) the leave.

Reductions in force

When an employer has a valid reason for reducing its workforce, the company can lay off an employee on FMLA leave – as long as the firm can prove the person would have been let go regardless of the leave. 

So companies should be prepared not only to prove the business necessity of the move but to show an objective plan for choosing which employees would be laid off.

Misconduct or poor performance

The law does not shield employees on FMLA leave — of any type — from the consequences of their misconduct or poor performance.

But companies that fire an employee out on leave under the FMLA will be under increased pressure to prove that the decision was based on factors other than the worker’s absence — and that the individual would’ve been let go even if they hadn’t taken the leave.

And courts have posed a key question: Why didn’t you fire the person before they took leave? 

That answer’s not always difficult. Many times, employers don’t realize how badly an employee was doing until they see the mess he or she has left behind. 

Real-life intermittent leave example: Court OKs termination

It’s well established that the FMLA isn’t a get-out-of-jail-free card – and that maxim also applies to intermittent leave. A case out of Maine shows that courts won’t stretch intermittent leave to cover chronic lateness.  

In Brown v. Eastern Maine Medical Center (D. Me. 2007), a female employee racked up a number of tardies that caught the attention of management. How bad was it? In a six-month period, she had 45 late arrivals or absences. Her supervisor suggested a transfer to a later shift to reduce the number of late arrivals, but the employee refused. 

The problems continued. Over the next 12 months, the employee was late or absent 52 times. She was suspended for three days. After the woman was notified of the suspension, she said she was sick and that she might have lupus. She explained that she was looking for a doctor to diagnose her health problems. 

The employee was suspended a second time due to continued tardiness. At that point, she met with senior management to explain that she had been late because she was sick. Shortly before she was fired, she told her manager she had an appointment scheduled with a rheumatologist and hoped to get a more definitive diagnosis.

The employer then offered the employee medical leave, although not specifically leave under the Family and Medical Leave Act. The employee refused the offer, saying she couldn’t afford to take unpaid leave. The employer later fired her for excessive violations of its attendance policy.  

After she was fired, a rheumatologist concluded that she suffered from a connective tissue disorder, which made it “impossible for [the woman] to continue the functions of her job, or to arrive at work on time.”

She filed an FMLA lawsuit claiming the company should’ve treated her lateness as excused intermittent leave under the FMLA. 

But the court was unconvinced, explaining that “the FMLA does not provide a blanket excuse for [her] persistent pattern of tardiness; or require an employer to suggest intermittent leave to an employee who is repeatedly late for work.”

Importantly, there was no record of the woman asking permission to be late from work, nor any occasion where she explained in advance that she needed to be late. Moreover, her attendance problems were never due to a doctor’s appointment or the need to follow a medical treatment plan, the court pointed out. And the real kicker: During the woman’s employment, no doctor ever told her it was medically necessary for her to be late to work. The court granted summary judgment to the employer.